In 1987, Judge Robert Bork was denied appointment as an Associate Justice by the largest margin in modern US Senate history: 62 no votes.
Why? Because, unlike recent nominees, Judge Bork openly discussed his “judicial philosophy.” Judge Bork was the intellectual father of what has become known as “originalism” - an approach to judicial interpretation that claims to strictly adhere to the text and the Framers’ “original intent” in interpreting the US Constitution, or more recently, their “original meaning.” Three members of the US Supreme Court majority in Dobbs (which overruled Roe and Casey) are avowed disciples of Bork: Justices Alito, Kavanaugh, and Barrett.
Judge Bork launched “originalism” in a 1971 academic essay that argued that the US Supreme Court should protect only those rights that are explicitly stated in the US Constitution or were clearly intended by its drafters. “When the constitutional materials do not clearly specify the value to be preferred,” he wrote, “there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and the history, and their fair implications, and not construct new rights.”
Bork’s essay is nearly lifted word-for-word by Justice Alito in the Dobbs majority opinion tearing away American women's existing right to choice and bodily integrity.
If it isn't sad (or scary) enough that a judicial philosophy that was once rejected by 60+ US Senators, and which is still rejected by the great majority of Americans, has become majority Supreme Court doctrine, consider what other outcomes/opinions Judge Bork expressly ADMITTED were the natural consequence of “originalist” judicial activism under oath at his confirmation hearings:
Equal protection applies to the federal government, not the states.
Malapportionment, in which legislative districts within a state have enormous differences in population, is not a denial of equal protection.
“One person, one vote,” where all votes are required to have approximately equal weight, is “incorrect” and “overreaching.”
The guarantee of equal protection cannot be used to limit sex discrimination because originalists avow that the Framers of the 14th Amendment were focused solely on race discrimination.
Neither the US Constitution nor the Bill of Rights protects an individual’s right to privacy (so no protection for abortion, contraceptives, interracial marriage, and/or LGBTQ+ marriage).
“Separate but equal” (Plessy v Ferguson) is constitutional; Brown v Board of Education was incorrect.
I refuse to have Americans’ individual and political rights governed and limited by views and values that may have prevailed in 1787 (Constitution adoption), 1791 (Bill of Rights passed), or even 1868 (14th Amendment enacted). Such judicial rigidity inevitably leads to results that are rightly deemed absurd and unacceptable in our very different time and modern world.
“Originalism” is hollow. It allows conservative justices and judges to pretend that they are following a neutral theory when, in reality, they are imposing their own values.
When Americans last had an actual opportunity to openly discuss and debate the US Constitution’s values and meaning, Judge Bork and his worldview were soundly rejected. We too must be diligent and protect our inherent and inalienable rights by rejecting the radical Dobbs Court and its current majority of Borks in sheep's clothing.
JARuppert
